@StateDept: Attack Not Specific Targeting of Americans Diplomats, #SouthSudan Guards “A Little Trigger-Happy”

Posted: 12:03 am ET


We blogged about FP’s piece on the targeting last July of American diplomats in Juba, South Sudan (see #SouthSudan Presidential Guards Target American Diplomats in Juba). On September 7, the State Department was asked about this incident during the Daily Press Briefing.  The Department’s assessment, according to the deputy spox is that “the attack was connected to the breakdown of command and control among South Sudanese Government forces” and did not specifically target American diplomats. The presidential guards who opened fire at the embassy convoy,  those soldiers were just “a little trigger-happy.”

The State Department says that its “concern” about the FP article was that “it made the assumption or allegation that there was a specific targeting of our diplomatic vehicles.” In the spox words, “And again  — it doesn’t in any way, either if it was or wasn’t, it doesn’t in any way excuse the behavior or the incident. But that’s just our assessment that we don’t believe it was.”

The spox also indicated in the DPB that there is reportedly an ongoing South Sudan investigation, and that Diplomatic Security is also conducting its after-action review of the incident but that ” they’re still looking at other details.” The spox says that in light of this incident, the State Department has made modifications to its security posture such as adjusting its curfew and the rules for the movement of embassy vehicles in Juba. The South Sudan Travel Warning dated July 10, three days after this security incident does not include any detail about curfews.

Below is the DPB segment on South Sudan, September 7:

QUESTION: Do you have a response to reports that seven American diplomats traveling in a convoy in Juba, South Sudan, were fired on by government troops? This was – apparently happened on July 7th —

MR TONER: That’s right.

QUESTION: — just days before that brutal attack on the hotel, the westerners at the hotel there.

MR TONER: Right.

QUESTION: And that in this shooting on the convoy, one of the cars was disabled and had to be essentially rescued by a Marine reaction force. What happened there?

MR TONER: Sure. So – and John Kirby spoke to this in the immediate days after the – this incident, and I would just reiterate from the top our condemnation of this attack on what was a U.S. embassy convoy by South Sudanese Government troops. I can walk you through the events as we understand them to have happened, but I can say that we do not believe our vehicles and personnel were specifically targeted in the attack. It’s our assessment that the attack was connected to the breakdown of command and control among South Sudanese Government forces, and we have demanded that the Government of South Sudan investigate this incident and punish and hold accountable those responsible for it.

But just to walk you through the events, again, as we understand them: So on the evening of July 7th, I think at around 2100 local time, two embassy vehicles were returning to the residential compound and passed, as part of their route, the presidential palace. About an hour earlier, forces that were loyal to the government – or rather, to Machar, rather – had clashed with forces loyal to President Kiir. And government troops stationed near the presidential compound, to put it mildly, were very tense. So the two embassy vehicles approached the soldiers on the road outside the presidential palace. When they moved toward the vehicle – they, the troops, moved toward the vehicles and tried to open their doors – the vehicles, the embassy vehicles appropriately, we believe, began to speed away from the scene. And at that time, the soldiers opened fire. Fortunately, the vehicles were armored and no one was injured. And the next day, July 8th, Ambassador Phee met with President Kiir and demanded that the government carry out a full investigation of the incident and hold those responsible for the incident accountable for their actions. President Kiir, it’s worth noting, did make clear that U.S. embassies were – embassy vehicles were not specifically targeted, and he vowed at that point in time to stand up a committee to investigate the incident.

Now, I don’t have anything to read out to you in terms of what that committee may have found or may be investigating or what the deadline is for them to reach an end to the investigation.

QUESTION: And you’re not saying that the – that the troops didn’t know who they were firing on. It was clear they knew they were firing on Americans. You’re just saying you don’t believe it was ordered by —

MR TONER: No, no, what I would say is just —

QUESTION: — Kiir to shoot American —

MR TONER: No, no, what I would say is we don’t believe that they necessarily knew. I mean, there were some – and I – we know —

QUESTION: Why do you not – why do you think that? I mean, it —

MR TONER: It’s just in our assessment. I mean, this is not something that we —

QUESTION: Yeah, but what is that based on? Because it would seem if they got close enough to try to open the doors that they would probably know who they were dealing with at that point.

MR TONER: Well, first of all, the windows were tinted as they often are in these kind of – in these vehicles.

QUESTION: And marked with American flags likely as well?

MR TONER: A very small laminated flag, and it’s not clear whether they would have even recognized the plates. I know that’s another thing that the story states.

Look, all I can do is offer our assessment of the situation. We’re not forgiving it and we’re certainly not overlooking it or saying, “Hey, not your bad. It was your” – look, we’re talking about here is the fact that they opened fire on an embassy convoy, and that is inexcusable. But what we believe were the factors of the environment around that was that they – there had been an altercation, fighting in the run-up to this convoy passing, and that they were very tense, and if I could say it, a little trigger-happy.


QUESTION: So your investigation concluded that these soldiers made a mistake. Did the investigation conclude anything about the advisability of driving through a republican — presidential palace checkpoint?

MR TONER: So we did – we did and conducted, as you note, an internal investigation, and that – an after-action review is in progress, but we have modified our procedures around the travel of convoys of our personnel.

QUESTION: Because it was a mistake to drive in between two opposing forces within an hour of a clash.

MR TONER: That’s – clearly, that’s – we have made modifications to our security posture.

QUESTION: What – what have you changed?

MR TONER: Well, we, for one thing, adjusted our curfew and we also adjusted the rules for the movement of embassy vehicles in light of the event, and obviously, in light of subsequent violence in Juba.

QUESTION: So it’s an earlier curfew now?

MR TONER: That’s my understanding, yeah.

QUESTION: And how are the rules for the movement of embassy been changed?

MR TONER: I can’t speak to that. I just can’t. I mean, that’s talking about our security posture, which we don’t do.

QUESTION: Why was it appropriate for them – this was a checkpoint, correct?

MR TONER: Not 100 percent sure. I – my understanding is that they passed in front of the presidential palace. Obviously, there were forces out there. I don’t know that it was a formal checkpoint.

QUESTION: Okay. And why was it appropriate for them not to open the doors?

MR TONER: Because they believed that – their assessment was that these forces were, again, trigger-happy, or shall we say – I’ll put it more diplomatically and say tense, and they felt threatened, clearly. And one of the standard procedures is if you feel threatened is to get the heck out of dodge.

QUESTION: So you stated that an after-action review is still in progress?

MR TONER: This is within – yeah, this is – so we’ve – so two points here. One, we’ve asked the government, obviously, to carry out a full and complete investigation. That, I believe, is still ongoing. I may be wrong there, but I don’t have anything here in front of me that says that it’s been concluded. But we also, as we would in any case like this, conducted our internal review.

QUESTION: And is that still in progress?

MR TONER: That’s in progress, but I was able to say out of that review we have obviously, and frankly immediately, adjusted curfew times and other —

QUESTION: And no other people in the convoy were physically hurt, but obviously it’s a very stressful —

MR TONER: Indeed.

QUESTION: — night for them.


QUESTION: Has anyone been evacuated from station? Has anyone received counseling?

MR TONER: We did – and we’ve talked about this before. I believe we’re on authorized departure from Juba. I believe that’s correct.

QUESTION: But do you know if any of the seven people involved in this have left?

MR TONER: I can’t speak to whether they’ve left or not.

QUESTION: Who or what entity is conducting the State Department’s after-action review?

MR TONER: That would be Diplomatic Security.

QUESTION: Okay. And from your account provided here at this briefing today, if I understand it correctly, you really cannot determine how much knowledge the presidential guard members had of who exactly was in this car. You really can’t make a determination whether they knew that there were Americans in this car or not, correct?

MR TONER: Again, I think I said we do not believe that, and I said we assess that the attack was connected more to a breakdown in command and control and not to a specific targeting. But I can’t categorically say one or – that it wasn’t.

QUESTION: Do you —

QUESTION: But you – so you can’t rule it out?

MR TONER: I can’t – yeah, as I was saying, as I – I qualified it. I said it is our assessment that —


QUESTION: Do you have – is in there about roughly how long this incident – the duration of this incident? How long did it last?

MR TONER: I don’t. Sorry, Matt.

QUESTION: But it does —

QUESTION: Can you confirm that three separate presidential guard units opened fire on the two cars?

MR TONER: I cannot. I’ll try to get – see if I can get more details about the duration and the number of —

QUESTION: It didn’t – this was quite quick. It didn’t happen over a course of hours.

MR TONER: Exactly. No, no, that I can —

QUESTION: This was something that – like, less than —

MR TONER: Right.

QUESTION: — less than several minutes? I mean —

MR TONER: I’d say, yes, within the realm of several minutes to 10 minutes. I have no idea. I can’t put a specific time to it, duration.

QUESTION: So this happened almost exactly two months ago. How long does it take to investigate or to look into a 10-minute – let’s just assume it’s 10 minutes – incident?

MR TONER: Are you talking the —


MR TONER: — government’s or the – look, I mean, I —

QUESTION: And are you pushing the South Sudanese Government to —

MR TONER: Yes, we are. Yes, we are. I mean, as I said, Ambassador Phee immediately the next day went to the president and demanded an investigation and we’ve been following up on that.

QUESTION: But that was July 8th.

MR TONER: I understand.

QUESTION: It is now September 7th.

MR TONER: I understand. And with regard to —

QUESTION: What’s the temperature, Matt.

MR TONER: With regard to – (laughter) —

QUESTION: In South Sudan? Hot.

MR TONER: With regard to our own internal investigation, clearly we made adjustments, immediate adjustments, to our security posture in light of that attack. But I think they’re still looking at other details.

QUESTION: You stated —

QUESTION: Any personnel involved being disciplined – U.S. personnel?

MR TONER: Not that I’m aware of, no.


QUESTION: You stated that at least one of these cars was struck by fire but fortunately was —

MR TONER: Armored.

QUESTION: — armor-protected. To your knowledge, has Diplomatic Security, as part of its after-action review, or any other U.S. personnel, made a physical inspection of these vehicles?

MR TONER: I would imagine, but I don’t – I can’t confirm that. I just don’t have that level of detail.

QUESTION: And the personnel – the U.S. personnel, presumably they have been interviewed as part of this after-action review, correct?

MR TONER: That would be – that would be expected, yes.

QUESTION: And that interview process took place overseas or here in Washington?

MR TONER: I don’t know. It could be either. It could be both. I just don’t have that level of detail.

QUESTION: And did anyone decline to cooperate with the after-action review?

MR TONER: Again, I can’t speak to that either.

QUESTION: It was James Donegan in the car, correct? And the car was disabled and had to be rescued by a Marine force. Is that all correct?

MR TONER: So there is – yes, so that’s an important – and I apologize I didn’t – so there was a small embassy security team basically that traveled to the vehicle and was able to recover our personnel. This happened when the vehicle was no longer under fire and there were no longer hostile forces present, when the team arrived.

QUESTION: Did any U.S. personnel discharge their firearms?

MR TONER: Not that I’m aware of, no.

QUESTION: And you don’t really have any problems with how the – Foreign Policy wrote this timeline of events, right?

MR TONER: I think our concern was that it made the assumption or allegation that there was a specific targeting of our diplomatic vehicles. And again —

QUESTION: Right, which – yeah.

MR TONER: — it doesn’t in any way, either if it was or wasn’t, it doesn’t in any way excuse the behavior or the incident. But that’s just our assessment that we don’t believe it was.

QUESTION: So you’re making excuses, but it doesn’t excuse —

MR TONER: We good? Yeah.

QUESTION: Do you have some preferred outcome for the South Sudanese investigation? Do you want to see people disciplined? Is that the —

MR TONER: Yes, unequivocally.

QUESTION: What would you think would be an appropriate discipline?

MR TONER: Well, I mean, look, that’s something for the South Sudanese Government to speak about, but this was clearly a serious incident that, to put it mildly, put at risk the lives of American diplomats and American citizens. So we take it very seriously and we want to see the appropriate people held accountable.



Mark Toner’s Last Briefing Before Vacation: We Can’t Stop Watching!

Posted: 4:40 am ET


We’re guessing the State Department’s deputy spox was already thinking of vacation when he did his briefing on Thursday.  Still he was not on the beach yet, but on the podium when this happened.

Transcript via DPB, August 4, 2016:

MR TONER: Hi guys. Happy Thursday.
QUESTION: Thank you.
MR TONER: And what makes it even more special is it’s a Thursday in August, which means tomorrow – everybody want to join with me?
QUESTION: No briefing —
MR TONER: True to our tradition, there will be – thank you, Matt – no briefing.
QUESTION: There will be one.
MR TONER: What was that, Said?
QUESTION: There will be a briefing. An old one.
MR TONER: An old briefing. (Laughter.) Anyway, welcome to the State Department. I think we have some interns in the back. Welcome. Good to see you in this exercise in transparency in democracy. (Laughter.)
QUESTION: Is that what it is? (Laughter.) I thought it was a —
MR TONER: Sorry, I didn’t mean to break out in laughter. (Laughter.)
QUESTION: I thought it was an exercise in spin and obfuscation.
MR TONER: All right. Can you tell this is my last briefing before vacation?

Folks, he needs that vacation, so give him a break, hookay?


UK Appoints “Sly Fox” #BoJo as New Foreign Secretary, Reactions From @Number10Cat and Others

Posted: 3:34 am ET

Here’s the man of the hour:

#BoJo has a long history of saying, well, undiplomatic things. He called George W. Bush “a cross-eyed Texan warmonger, unelected, inarticulate, who epitomizes the arrogance of American foreign policy.” Da Donald? “The only reason I wouldn’t visit some parts of New York is the real risk of meeting Donald Trump.” Read on.

Then there’s this one about his visit to Iraq in January 2015.

Perhaps it’s time for the FCO to join Foreign Service Problems (@FS_Problems), Canadian Foreign Service Problems (@cdnfsproblems) and Gifplomacy (though no longer updated by the French dips)?

Whitehall’s Chief Mouser, Palmerton (@DiploMog) did exercise appropriate restraint at the announcement, but Number 10’s Larry the Cat was pretty harsh:

Meanwhile —

This video via the BBC profiling BoJo is quite interesting and dare we say it … entertaining. The “sly fox” masquerading as a teddy bear. Have a look.




@StateDept Seeks to Limit Discovery in Clinton Email FOIA Court Case, Spox Can’t Say Why

Posted: 2:15 am ET


Below is the State Department’s court filing via Politico:

On April 6, this obviously made it to the Daily Press Briefing:

QUESTION: — knowing that you’ll probably refer me to the Department of Justice. But – so yesterday or late yesterday there was a filing in the FOIA – the email FOIA – one of them, on the discovery – the order to grant discovery.

MR TONER: Right.

QUESTION: And I’m just curious about this, because I haven’t actually seen the order, I’ve just read the stories about it. What does the department, through its lawyers, claim to be its standing for trying to limit the scope of questions asked of ex-employees?


QUESTION: I mean, I can understand why you would be making a motion on behalf of current employees. And I could probably even understand why you say that this – they are being asked about their activities while they were in government. But this seems to be something – I mean, shouldn’t their own lawyers be making this kind of a motion? Why is the State Department making it?

MR TONER: So I appreciate the question and understand your interest in the story. You are correct insofar as – well, first of all, we did submit a filing with the court last night on this matter. But I cannot comment on the actual content of that court filing, because this is something that’s already – or that is a matter of ongoing litigation, so I can’t even comment on your question because it would speak to this matter that’s still in litigation.

QUESTION: Can you tell me if it says in there – I mean, maybe I’m just completely naive and ignorant —

MR TONER: I don’t have it in front —

QUESTION: — about this.


QUESTION: But does it explain in this motion how it is that the department has standing to make such a request on behalf of a former employee?

MR TONER: Again, I can’t speak specifically to this matter, but I can say that the department’s engaged on any given year in litigation before federal courts, administrative and arbitral tribunals. And depending on the facts —


MR TONER: — applicable procedures, and nature of the claims, we do – there may be discovery, but it is case by case.

QUESTION: No, I understand that.

MR TONER: And so – yeah.

QUESTION: I mean, the answer to my question could be very, very simple, that it’s – that it – it could be that it’s completely normal —

MR TONER: You’re asking whether it applies to ex-employees?

QUESTION: Well – no, it does. I know that the motion does cover them. I’m just curious as to what the —

MR TONER: What the rationale is?

QUESTION: Right. I mean, it may be very straightforward, that because they’re being asked to talk about stuff they did while they were in government that you do have some kind of standing to speak on their behalf.

MR TONER: And I will see if I can get you any —

QUESTION: And I’m just wondering if —

MR TONER: — more clarity on that.

QUESTION: Right. Thanks.

MR TONER: But I have to just preface that by saying —


MR TONER: — I am restricted in what I can say when something – it’s an ongoing litigation.


Seriously perplexed journalist asks: Forgive me for asking, how could he not know?

Posted: 1:19 am EDT


Via state.gov/daily press briefing:

QUESTION: Yeah, just a follow-up, please. Patrick Kennedy was recently on the Hill testifying in front of the select committee, and he told members that he knew about the email server really from the get-go but he did not understand the scope of its use. He thought it was clearly just for personal use with her family. But that is really undercut by his email traffic, which shows that he was using that account for government business. So how do you reconcile those two?

MR TONER: Sure. I mean, Catherine, normally I wouldn’t address or read out what was a private interview between Under Secretary Kennedy and members of the Benghazi committee, but on your specific claim that he knew about Secretary Clinton’s private server, that’s not correct. And that was made clear in his comments to the Benghazi committee. What he said he was aware of is that she was interested in setting up a private computer in the department so that she could email back and forth with her family during the work day. And as we’ve said previously, no such computer was ever set up.

QUESTION: And just – you may have to take this question.


QUESTION: Was Patrick Kennedy her records officer?

MR TONER: That’s a good question. Yeah.

QUESTION: Records officer is the – yeah, the – yeah, if you could find out.


QUESTION: Because the records officer is the person responsible for the records, the human resources, but more specifically, signs the non-disclosure agreements for classified and TS/SCI compartmented information.

MR TONER: Right. I’m not sure in this case who would have been her records officer —

QUESTION: I believe it was Patrick.

MR TONER: — or whether there was – right.

QUESTION: Yeah, if you can check. We understand it was Patrick Kennedy.

MR TONER: Okay, we’ll get back to you on that.

QUESTION: Thank you.

QUESTION: A quick follow-up to that?


QUESTION: And I take your point that you wouldn’t normally read out what you say was a private interview —


QUESTION: — between a congressional committee and an administration official, but you said that in response to the question about whether or not Kennedy was aware of Secretary Clinton’s use of a private server from the get-go, you said that’s not correct.

MR TONER: Right, so – yeah, sorry.

QUESTION: And that – so here’s my question.


QUESTION: Under Secretary Kennedy is responsible for both streams of the department that would be in charge of the Secretary’s communications – the one that actually does the communications and the emails, all of which fall under his purview, and then DS, Diplomatic Security, which also fall – which also report in to him. How could he not be aware that the secretary was using a private email server for all her work email communications? How could he not know if he is responsible both for DS and for the people who do the technical and computer stuff at State?

MR TONER: So again, what I was trying to make clear there was that he was not – his knowledge about her wanting to set up a private computer within the department, not at her residence, so that she could email her family, that’s what he was speaking to about in his interview. And again, as I said, no such computer was ever set up. Your broader question – again, he’s spoken to it before, or we’ve spoken to it before, that he did not have knowledge of the computer server that she had set up, the personal email or computer server. She set it up at her residence. Again, that’s not really our focus here. I would just return to the fact that our focus is on releasing the FOIA.

QUESTION: Forgive me for asking.

MR TONER: That’s okay.

According to the National Archives (PDF), Mr. Kennedy who is the Under Secretary for Management is also the Senior Agency Official for Records Management at the State Department.

Pardon us, we are poor sods, perplexed at the goings on of this world.


Related posts:

Dear @StateDept, You Need Bond. Michele Bond at the Daily Press Briefing

Posted: 4:08 am EDT


In case you missed this:


We’ve just read the Daily Press Briefing from last week with the press corps asking questions about K-1 visas related to the San Bernardino attack.

Oh, holy mother of goat and her stupid nephews!

It should have been all hands on deck to know absolutely everything about this case.  Instead we have Mark Toner, the deputy spokesperson of the State Department on December 3, either asking to take the question, or guessing his response. “I don’t know “…. “I would presume …”

Then the next day, Elizabeth Trudeau, the Press Office director did the DPB and seriously underwhelmed our video player. She refused to confirm that the K-1 visa was issued in Islamabad, something that Mr. Toner already talked about just the day before. 

Folks, haven’t you learned anything at all?  Anything? It’s not like this case is locked in a file cabinet in the catacombs of Foggy Bottom..  That’s why you have your consular systems.


Her name is Bond, Michelle Bond.

The State Department need to put its Consular Affairs Assistant Secretary of State Michele Bond up there at the podium to answer these questions.  Help the journalists understand the K-1 process, and the roles State and DHS play in the systems currently in place.  PA officials who have not done visa work in 15-20 years should not be left on the podium guessing about the process and unable to answer questions about this case.

When the press asks, “Can Americans have confidence in this visa processing system?”, Ms. Bond should be able to say “Absolutely, and here’s why.”  And she should be able to explain clearly the whys.  Hopefully, she’s not going to say because “it’s an adaptable system” or  that “We continue to improve it.” Because people are not really interested whether it’s an adaptable system. They want an assurance that the systems in place work; and if it did not work in the visa issuance process for Tashfeen Malik, they want to know what had been done to update that process.

We were going to suggest that the State Department convene an Accountability Review Board per 12 FAM 030. The ARB Permanent Coordinating Committee, where the Deputy Assistant Secretary for Visa Services sits as one of its seven members, by the way, can make that recommendation to the Secretary:

“The ARB process is a mechanism to foster more effective security of U.S. missions and personnel abroad by ensuring a thorough and independent review of security- related incidents. Through its investigations and recommendations, the Board seeks to determine accountability and promote and encourage improved security programs and practices. In addition, the ARB mechanism enhances the integrity of the visa issuing process by determining accountability in certain instances in which terrorist acts in the United States are committed by aliens.”

Except that current regulations are quite clear that “a Board will be convened with respect to a visa incident only if the following three determinations are made:”

(1)  That the incident involved a terrorist act causing serious injury, loss of life, or significant destruction of property in the United States;

(2)  That there is probable cause to believe that a specifically identified alien was a participant in the terrorist act; and

(3)  That the alien was issued a visa on or after May 1, 1996; at the time of visa issuance, the alien’s name was included in the Department’s Consular Lookout and Support System (CLASS) and that the visa was issued as a result of a failure by the consular officer to adhere to the procedures required to be followed by the inclusion of the name in such visa lookout system.

Since State is confident of its vetting process, it appears right now that subject was not in the CLASS.  Which would make the ARB not a requirement under these regs.

Nonetheless, it would be helpful to know if the State Department has reviewed its internal processes or that it plans to do so. This individual got through  — despite the vetting, the interagency sharing of information, fingerprints, etc, and the face to face interview —  it is not unreasonable to ask how she got in. Maybe there are no cracks, but the public needs to understand the process, which will never with 100% fault-free.

As our consular blog pal told us, “It will never be fault-free because humans aren’t.” People can get away with lying, or can change their minds. Unless the USG has come up with a precognition system similar to Philip K. Dick’s in the Minority Report, there is no way to determine an individual’s action in the future. What do you do with a culprit that has not yet committed a crime? Do you arrest him or her before he/she commits a future crime thereby protecting the public from all prospective harm?  What regulations apply to that?

Daily Press Briefing excerpts:

On December 3, Mr. Toner, the State Department’s deputy spox took a stab at the K-1 questions.  If you want to beat your head against the wall, hard … well, we can understand the feeling, but wear your helmet first, okay?

QUESTION: — of the suspects in the San Bernardino mass shooting that happened yesterday? There are various statements and reports out there about Tashfeen Malik, the alleged female shooter suspect who was killed yesterday. Some are saying that she lived in Saudi Arabia before coming to the U.S. And what I wonder is the extent to which the State Department has been pulled into this investigation. Can you give us some kind of guidance on whether those reports are accurate? And if so, what type of visa was she in the United States on? Is there anything about the citizenship status of her that you can share with us?

MR TONER: Sure. Well, since it’s already been reported out in the press, I can confirm that she did receive or was issued a K-1 so-called fiancee visa, I believe in 2012. Is that correct? 2015 – 2000 – help me here. Okay, we’ll get that number for you. Unfortunately, it’s not in front of me here. But she did receive that from Pakistan. That allowed her to travel here to the United States.
QUESTION: Does that require an interview?

MR TONER: If that petition is approved, the case is forwarded to the U.S. consulate abroad in order to verify the qualifying relationship and vet the applicant for any derogatory information. I’m virtually sure that, as in any visa – as in any visa processing, that that involves an interview. I don’t know if —

QUESTION: But not a joint interview, right? They don’t have to appear together at the consular office, wherever that is?

MR TONER: Not – that I’ll have to – I’ll have to take that question. I’m not sure. I’m not sure.


QUESTION: And can you also check on the – that before getting that given visa, where did they meet? Because I’m not sure, but if I’m remembering correctly, there is a clause that they should have met or like – it’s not just on the —

MR TONER: Again, no, that wouldn’t – so that wouldn’t – again, I would refer those kinds of questions to the FBI who’s conducting the investigation into this.

QUESTION: Well, what happens if they don’t get married within 90 days?

MR TONER: I would presume that the – that would invalidate the visa.

QUESTION: And if – okay. And then if they do, does that mean that the visa is extended or they have to apply for something else?

MR TONER: Unclear to me whether that would be – that would be automatically extended. I would somewhat doubt that. There may be – again, I’m – I’d have to get you the full facts on it. I mean, if there’s extenuating circumstances, perhaps. I don’t know in this particular case and can’t really speak to it, but there’s a 90-day window because there’s a 90-day window. So, I mean —

QUESTION: Right. But one doesn’t automatically become a U.S. citizen —

MR TONER: No, not at all.

QUESTION: — simply because one married one. So clearly —

MR TONER: Not at all. So any individual would have to provide for legal residency or a green card after living here, I guess, in – it’s one year, I think.

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Who signed off on Secretary Clinton having a private server? Over there – go fetch!

Posted: 1:19 am EDT

DPB, September 1, 2015

QUESTION: But do you know who signed off on her having a private server?

MR TONER: Who signed off on her? I don’t, no.

QUESTION: I mean —

QUESTION: Did anybody?

MR TONER: Again, I’m not going to answer that question. I’m not going to litigate that question from the podium.

QUESTION: So you’re saying that nobody signed off on her having a private server?

MR TONER: No. I’m saying – look, everyone – there were – people understood that she had a private server. I think we’ve talked about that in the past.

QUESTION: What level was that knowledge? How high did that go up in this building?

MR TONER: I mean, you’ve seen from the emails. You have an understanding of people who were communicating with her, at what level they were communicating at, so —

QUESTION: Was there anybody in this building who was against the Secretary having her own private server?

MR TONER: I can’t answer that. I can’t.

QUESTION: And just —

MR TONER: I mean, I don’t have the history, but I also don’t have – I don’t have the authority to speak definitively to that.


MR TONER: Again, these are questions that are appropriate, but appropriate for other processes and reviews.

QUESTION: But not the State Department? She was the Secretary of State and —

MR TONER: No, I understand what you’re asking. But frankly, it’s perfectly plausible – and I talked a little bit with Arshad about this yesterday – is for example, we know that the State IG is – at the Secretary’s request – is looking at the processes and how we can do better and improve our processes. And whether they’ll look at these broader questions, that’s a question for them.
QUESTION: So last opportunity here: You don’t know who signed off on Secretary Clinton having her own server?

MR TONER: Again, I don’t personally, but I don’t think it’s our – necessarily our responsibility to say that. I think that that’s for other entities to look at.


Holy Molly Guacamole!

See here? I don’t have enough fingers to count the verbal calisthenics the public is subjected to these days from the official podium of the oldest executive agency in the union.

He’s just doing his job, like … what would you do?

Pardon me? You’re embarrassed, too? Well, I suggest wearing a brown paper bag when watching the Daily Press Briefing from now on.

Are we ever going to reach a point when the career folks at the State Department will say “Enough, I’m not doing this anymore?

Hard to say. Hard to say. Although that did happen in Season 1, Episode 15 of Madam Secretary, so there is a clear precedent.


Holy Mother of FAM!!! Oh, Mr. Toner, What Have You Done?

Posted: 2:39 am PDT


On August 31, the State Department’s deputy spox was asked if the Secretary of State is bound by the rules of the Foreign Affairs Manual or not? (see Question of the Day: Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not?). On September 1, the question was asked again and Mr. Toner promised to get an answer.

On September 3, the question was revisited for the third time, and here is the delightful exchange:

QUESTION: I have a – I’d asked you a question the other day and you said you’d get me an answer to it —

MR TONER: Did I? (Laughter.)

QUESTION: — and the question was whether the Foreign Affairs Manual applies to secretaries of state? Does it?

MR TONER: So – (laughter) – yeah. So I did do some research into this, as did others. It is – the Foreign Affairs Manual is – it is not comprehensive in, nor is it a bible for all Foreign Service officers or civil servants. So – and what do I mean by that? I mean it’s not – for example, there’s things in there about reimbursement of the use of your private vehicle. Certainly, that doesn’t apply to the Secretary of State or many people within the State Department.

So it’s – what’s contained in the Foreign Affairs Manual – and this is – I apologize but this is a kind of an in-the-weeds question – all of that is not necessarily relevant to, for example, ambassadors or secretaries of state or senior Department officials. I mean, if I can say what I think the essence of your question was, and I’m sorry if this is presumptive, but was whether they are bound by the responsibility to protect classified information. That certainly is true, that any Secretary of State, any senior State Department official is bound by that. And I spoke to this the other day, is that any individual, whether you’re the Secretary of State on down, takes that responsibility seriously.

QUESTION: But my question —


QUESTION: I mean, I really – I was not asking whether they were bound by every aspect of it, including those that are not relevant to them. It was whether they’re bound – basically whether they’re bound by the things that are relevant to them.

So to take the one that you raised, which is not whether they’re bound to protect classified information or to take seriously the responsibility to protect classified information, the question would be then, since you raised that as a specific: Are they bound – are secretaries of state bound by the rules in the Foreign Affairs Manual with regard to the handling of classified information?

MR TONER: I would say, as they are pertinent to the – and again, I don’t have the Foreign Affairs Manual in front of me – but as they are pertinent to the responsibility to protect and safeguard classified information, and we’ve talked about this, frankly, ad nauseum about the gradations and how we classify stuff and how we look at it. But as those rules – they apply to everyone in the State Department, including, for example, politically appointed ambassadors, and certainly by a secretary of state who is appointed by the President and, frankly, serves at the pleasure of the President and is not a Foreign Service officer in that regard or a civil servant.

QUESTION: So insofar as the regulations of the Foreign Affairs Manual touch on the protection of classified information, they apply to everyone, including the Secretary of State?

MR TONER: Again, I don’t have it in front of me but – and I’m not trying to parse this, but in a sense I am. Insofar as those regulations apply to the protection and safeguarding of classified information, yes.

QUESTION: Thank you.

QUESTION: Can we go back —

QUESTION: That didn’t seem like a parse to me.


Selective application, amirite?

First, Mr. Toner says, “So I did do some research into this…” Excuse me, why the heck is he doing the research on this? What’s the use of the Office of Legal Adviser, if you can’t get them to issue a formal opinion on this matter?

Then he says, “the Foreign Affairs Manual is – it is not comprehensive in, nor is it a bible for all Foreign Service officers or civil servants.”

Oh dear. Quick! If you’re in a disciplinary process, tell your lawyers.

Saying “again, I don’t have the Foreign Affairs Manual in front of me” might be a trick in the PA playbook but it’s not cute, okay?  This question has been asked since August 31st. The FAM is online, and easily retrievable.

He did say that “Insofar as those regulations apply to the protection and safeguarding of classified information, yes,” when asked if  the protection of classified information apply to everyone, including the Secretary of State per FAM.

Hey, did you know that “reimbursement of the use of your private vehicle doesn’t apply to the Secretary of State or many people within the State Department?”

Makes you wonder, for all the stuff where the FAM doesn’t cover the Secretary of State and many other people within the State Department, what alternate rules and regulations govern their workplace, and conduct on and off their jobs?  We’d like to know in case we’re tapped by  President Julian Navarro to find a successor for the libidinous Secretary Larson.

But seriously.

Per 2 FAM 1111.1 the Department of State articulates official guidance, including procedures and policies, on matters relating to Department management and personnel, known collectively as “directives,” in the Foreign Affairs Manual and Handbook Series. Directives include Department administrative organization policies and procedures. These directives derive their authority from statutes, Executive orders, other legal authorities, and Presidential directives, such as OMB circulars, and Department policies.

Per 2 FAM 1115.5-1 the Foreign Affairs Handbook (FAH) series is a supplemental series providing guidelines and procedures for implementing policies and directives contained in the FAM. Materials published in the FAH has the same force and effect as materials published in the FAM.

These directives apply to the Department of State and its operations worldwide (2 FAM 1111.3)

These directives apply to all Department of State and other relevant personnel worldwide (2 FAM 1111.4)

Note that 2. FAM 1111.4 does not make a distinction whether an employee is a career employee or a political appointee who is employed by the State Department.  Also, every time the FAM is updated, a Change Transmittal documents it.  All transmittals includes the following reminder:

Officers are reminded that Department-issued materials not codified in the Foreign Affairs Manual or its supplemental Foreign Affairs Handbook series generally have no regulatory validity (see 2 FAM 1115.2).

Pardon me?  Between 1-10, how confusing is all this? Sigh…

By the way, AFSA did ask a similar question earlier this year concerning this (see AFSA Politely Asks the State Dept: Is Adherence to the Foreign Affairs Manual Optional For Some?). We understand that the State Department had issued a response in the waning days of the previously elected AFSA Governing Board. As far as we are aware, that response has not been released to the AFSA membership. And we have not been able to get a response to two questions we sent to the newly elected president and VP of AFSA.




Question of the Day: Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not?

Posted: 2:40 am EDT


Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not? That’s the question asked during the August 31 press briefing at the State Department.

QUESTION: Two other quick things. One is: Do you believe as a general matter that the Secretary of State, whomever he or she may be, is bound by the rules in the Foreign Affairs Manual or not? I mean, it may be that they’re not, that they have sort of a status that’s different and that therefore they have the rights to not follow it.

MR TONER: I mean, I would just say that every State Department employee from the Secretary on down takes the handling of classified information very seriously and is aware of the rules surrounding those classification standards.

In reading these excerpts, it is useful to remember the  State Department’s Most Candid Nugget.  A bit later, another one tried asking this again:

QUESTION: On the thing that everybody is obliged to – I mean, can you not address squarely whether the Foreign Affairs Manual applies to the Secretary of State or not?

MR TONER: I mean, I can say that, again, we, from the Secretary on down, take the handling of classified materials and the rules surrounding those – so I mean in that sense, including the Foreign Affairs Manual but also other regulations, stipulations, training that we undergo in how to handle classified and confidential information.

QUESTION: You take them —

MR TONER: Seriously. I’m sorry.

QUESTION: But does that mean that you’re bound by them?

MR TONER: We’re all bound by – how we treat classified information is, as I said, an important component of the work we do, but I’ve also made clear that when you look at classified material it is not an exact science, it’s not black and white, it’s not always clear, so there’s strong feelings and different beliefs about when something is classified, whether it’s born classified, whether it should be classified later. These are all questions that are being answered in a deliberative and a thorough way that we’re looking at that’s not somehow some cabal of people in a small room somewhere making these decisions. It’s an interagency process. It involves the IC, it involves other agencies as it touches their equities. So that’s our focus.

QUESTION: Mark, since you just said those —

MR TONER: Please, go ahead.

QUESTION: — rules and standards are so important that everyone in this building has to follow them, can you say from that podium categorically that Secretary Clinton followed the rules and the law?

MR TONER: I’m just not going to answer that question. It’s not our goal, it’s not our function in this regard in releasing these emails. Our goal and our sole purpose when we look at these emails is to decide – well, first to publish them according to the FOIA request that we have received. But in doing that, looking at them and deciding whether any of that material needs to be redacted and subsequently classified.

QUESTION: Isn’t it a little odd that the State Department can’t state categorically that the Secretary of State followed the rules?

MR TONER: All I can say is that there are – and I’ve alluded to there – I’ve not alluded to it, I’ve said as much to Arshad: There are other reviews, and that’s really for the inspector general and other entities who are out there looking at some of these broader questions.

Click here for the DPB | August 31, 2015.

The first question starts with “Do you believe …”  They can pin Mr. Toner to the wall with giant thumb tacks but we doubt very much if they can pry a straight answer out of him on this one.  What he believes is immaterial. What the building believes is what counts. And for that, we think you’d have to go ask the Legal Adviser.

Oops, wait! Brian Egan nominated to succeed Harold Hongju Koh is still stuck in the Senate confirmation process. Originally nominated in September 2014, Mr. Egan has now waited 347 days for his Senate confirmation. He had been renominated once before on January 16, 2015 when his nomination was not acted by the Senate last year.

While the Office of the Legal Adviser (without a Senate-confirmed Legal Adviser) has not released an opinion on this subject, it apparently told the OIG that the Foreign Affairs Manual‘s disciplinary provisions do not apply to political appointees as they are “not members of the Foreign Service or the Civil Service.”

The January 2015 OIG report Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (pdf) includes the following:

[The] Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.

According to the OIG report, the Under Secretary for Management disagrees with this interpretation:

[T]he Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)).

Hey, if there’s a shootout between “L” and “M”, who wins?

Okay, first, how can Legal only cites the FAM’s disciplinary provisions? The Foreign Affairs Manual is the rules book for the agency. If the disciplinary provisions do not apply to political appointees, what other parts of the FAM do not apply to them?

Can they ship construction materials with their household effects, for instance? Can they change their workdays so they only have to work Tuesdays through Thursdays and have four day weekends every week? Can they travel first class without using U.S. air carriers? Are they obligated to account for their own conduct, whether on or off their jobs? Are they allowed to accept and retain gifts given to them by foreign governments? Can they speculate in currency exchange? Can their spouses work anywhere they want? Are they allowed to invest in real estate in their host countries? And on and on and on.

So if we follow the Office of Legal Adviser’s opinion to its logical conclusion, the Secretary of State, if a political appointee is also not subject to the FAM, yes?

That’s a dreadful opinion, by the way. It puts a politically appointed secretary of state and politically appointed American ambassadors in the enviable position of rallying the troops with “follow what I say, not what I do.” Because, if that’s the case, political appointees can do anything — fundraise overseas, for example — and not have consequences, while regular employees doing exactly the same thing could be penalized.  Or they/their spouses can ship goodies for private gain using the diplomatic pouch and not have any penalty while a career FSO’s spouse would surely be penalized for doing the same thing. And if political appointees are not subject to the Foreign Affairs Manual because they “are not members of the Foreign Service or the Civil Service” the questions then become 1) why are they in the Foreign Service or Civil Service pay scale? and 2) if not the FAM, which rules are they supposed to adhere to?

Of course, this could also mean that if a Foreign Service officer is appointed Secretary of State, he/she would then be subject to the FAM because he/she is a career member of the diplomatic corps. Not that there’s any great danger of that happening. Lawrence Eagleburger is the only career Foreign Service Officer to have served as Secretary of State (appointed Secretary of State on December 8, 1992, and continued in that position until January 19, 1993). But see why that L opinion is troubling?

In any case, we do think this is an important question that ought to have a simple answer.

Except that it doesn’t.

Is the Secretary of State bound by the rules of the Foreign Affairs Manual? 

During the September 1 DPB, a reporter revisited this once more:

QUESTION: It’s a question that I asked the other day and I’d like to ask if the State Department will take a policy decision on this, not with regard to Secretary – former Secretary Clinton, but with regard to current and past secretaries of state, and that is whether it is the view of the Department that the Secretary of State is bound by the rules laid out in the Foreign Affairs Manual.

MR TONER: Okay. I mean, I —

QUESTION: As a general principle, do they apply to the Secretary of State or not, or do they apply selectively? That’s the question.

MR TONER: Okay. I will get you an answer for that.

We await with great interest Mr. Toner’s answer to this very straightforward question. We hope the reporters would keep asking this question. Every day until we all get an answer.


Related posts:




State Dept says enhanced gag rules policy “more protective of employee speech” … no cry, cry, please!

Posted: 5:07 am EDT

On August 17, we wrote about the State Department’s updated and enhanced rules for speaking, writing, teaching and media engagement covering all creatures big and small in Foggy Bottom, and the worldwide diplomatic universe (see State Dept Releases New 3 FAM 4170 aka: The “Stop The Next Peter Van Buren” Regulation).

The Daily Signal picked it up and got an official statement from deputy spox Mark Toner:

State Department Deputy Spokesperson Mark Toner says the reason for the revisions is actually “to underscore that the Department encourages employees to engage with the public on matters related to the nation’s foreign relations.”

“The revised policies and procedures are more protective of employee speech as they establish a higher bar for limiting employees’ writing or speaking in their personal capacity, while also recognizing changing technologies in communication, such as social media,” Toner said in a statement to Daily Signal.

Toner also said the revisions do not change the procedures employees must follow before testifying in court or before Congress but “streamline the review process and also remind employees about existing rules regarding the disclosure of classified and other protected information.”

Streamline-apalooza! Here’s the laugh out loud cry from our favorite Veronica Mars:

“It’s an absolute overreach,” Rep. Jason Chaffetz, chairman of the House Oversight and Government Reform Committee told the Daily Signal:

“They should be able to talk to the media, they should be able to speak to Congress,” the Utah Republican said. “They have an absolute and total right to interact with Congress. There are whistleblower protections. That’s not a balanced approach to current and former employees’ rights.”

No kidding! We imagine that the State Department would say no one is preventing anyone from speaking to the media or Congress, they just want to know what you’re going to say first.  Before you say it. And hey, the agency will even help you clean it up, if needed.

When the ACLU defended Mr. Van Buren in 2012, it made the following argument:

The Supreme Court has long made clear that public employees are protected by the First Amendment when they engage in speech about matters of public concern. A public employee’s First Amendment rights can be overcome only if the employee’s interest in the speech is outweighed by the govemment’s interest, as employer, in the orderly operation of the public workplace and the efficient delivery of public services by public employees. Pickering v. Bd. of Educ, 391 U.S. 563, 568 (1968). The government bears an even greater burden of justification when it prospectively restricts employees’ expression through a generally applicable statute or regulation. United States v. National Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”).
The Supreme Court has repeatedly held that public employees retain their First Amendment rights even when speaking about issues directly related to their employment, as long as they are speaking as private citizens. Garcetti
v. Ceballos, 547 U.S. 430, 421 (2006).
Further, the State Department’s pre-publication review policy, as applied to blog posts and articles, raises serious constitutional questions. Through its policy, the State Department is prospectively restricting the speech of Mr. Van Buren as well as all present and future State Department employees. Where, as here, the restriction limits speech before it occurs, the Supreme Court has made clear that the government’s burden is especially heightened. NTE U, 513 U.S. at 468. The State Department must show that the interests of potential audiences and a vast group of present and future employees are outweighed by that expression’s necessary impact on the actual operation of government. Id. Courts have also required careful tailoring of prospective restrictions to ensure they do not sweep too broadly and that they actually address the identified harm. Id. at 475. Given this heightened standard, it is highly unlikely that the State Department could sustain its burden of demonstrating that its policy is constitutional.

In 2012, the ACLU presumably, used the 2009 version of 3 FAM 4170.  The updated version of 3 FAM 4170 issued July 27, 2015 is much tighter and has a much wider reach.  We don’t know how one could argue that this enhanced policy could better sustain constitutional challenge. But then, perhaps, State has a stable of constitutional lawyers at a ready. Besides, those folks outside  the building do not have legal standing to challenge these rules. So.

Oh, wait, perhaps, the State Department is also counting that no one will cross the fine line after Mr. Van Buren, and this policy functions, at its core, as a simple deterrent.


Related item:

ACLU Van Buren Letter to U/S Management Patrick Kennedy dtd May 15, 2012